The Deferred Action for Childhood Arrivals program (better known as DACA) is a pseudo-executive order issued by President Obama’s administration in June 2012. It allows young undocumented, illegal immigrants to continue to reside in the country to attend school and work without the fear of enforcement of immigration laws pertaining to their resident status. It further allows access to work permits and other government benefits, in violation of law, so it is not merely an exercise of Executive prosecutorial discretion, as it claims.
DACA is pretty clearly unconstitutional, embodying an attempt by a president to impose or override law. Our constitution reserves to the Legislative branch sole law-making ability and to the Executive branch responsibility for enforcing (upholding) the law. The Texas vs United States case, which overturned the similar DAPA executive order, was overturned by the Supreme Court on essentially this argument, and DACA would very likely fail a challenge in court, as well. However, we should not have to sue to undo frequent unconstitutional acts by our President, but rather, we should elect leaders
with the ethics to uphold the constitution, which they swore to do when taking office. In fact, the Constitution explicitly requires that the President “take care that the laws be faithfully executed.”
Whether you think the protections to young illegal immigrants afforded in DACA is a good idea or not, we have in such executive orders a threat to our democracy, or more accurately, a threat to our great Republic, the United States of America. We rely on the rule of law, as we are a nation governed by documented consent of the governed. This consent is codified in the legislation drafted and approved by those we elect to represent us. If these laws can be controverted by the whimsical memoranda of a President or administrators, where law has not given that authority, we have elevated him or her to the office of Dictator. At such a point, our Republic no longer stands, our vote no longer counts, and we will soon find our consent to be governed of no further consequence.
If DACA is a good idea, it must be lawfully and constitutionally codified and approved by Congress to be enacted. No President may write law. President Trump is right to end this executive whimsy, while giving Congress time to implement proper law if DACA is the will of the people they were elected to represent.
– Ken Witt
For an accessible discussion of the constitutionality of DACA and executive orders in general, I encourage you to read Stanford Law Professor Michael McConnell’s great Q&A.